Counterpoint: God Denies Causing Car Accident

By consumerist.comOctober 10, 2006

Martin, also a California lawyer, doesn’t believe God was in that crashing car at all. He writes:

“The person below who claims to be a California lawyer has misunderstood the law of negligence and the responsibility of a driver on the road. He incorrectly believes the negligence requires that someone do something intentionally. It doesn’t. The driver had a duty to operate his vehicle safely (as we all do) and he breached that duty when he lost control of the vehicle and crashed into someone.

While having a stroke might a defense to a criminal action (since he had no intent), it is not a defense to negligence, which does not require intent at all.

I think that the person who originally contacted The Consumerist is confused about how liability insurance works. If Progressive is the stroke victim/driver’s liability insurance company, they don’t have to pay anything until the driver loses a lawsuit, and then the insurance company’s only obligation is to pay the damages that its insured (the driver) is ordered by a court to pay.

Now, it is often the case that the insurance company settles without a lawsuit, in order to avoid the costs associated with hiring a lawyer, etc.

Act of God clauses usually apply in property damage claims made by the insured (i.e., his car is struck by the finger of god, lightning). So, if you are trying to get your insurance company to pay for damage caused by a stroke victim/driver, I could see them attempting to invoke the Act of God clause, but I think that they would not win if you sued them.

The act of God clause has no application here. If the guy hit someone, he’s responsible, and when he loses a lawsuit, his insurance company will have an obligation to pay his damages. If they choose to do so beforehand, that’s fine. But, if they don’t, the only remedy is to find a lawyer and sue him (not his insurance company) for the damage he caused.”

Guess this is why they call ‘em lawyers. We’ll need to get a judge to sort this one out for certain.

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First off, IAOALS (I am only a law student), so take this with a grain of salt.

I agree with the first post insofar as it says that there is no “negligence.”

Negligence requires:
a. A duty of care.
b. Breach of the duty.
c. The breach was the proximate cause of the injury.

In this case, he had a duty to drive in a safe manner. Since he did not know, nor should he have known, that he might have a stroke, then there is no breach. Therefore, there is no negligence.

I don’t, however, know the ins and outs of insurance, and I’m not sure that negligence is a requirement for the insurance company to pay out.

I would think that a) the guy who had the stroke is “at fault,” in the sense that “but for his actions, the accident would not have occurred.” I think that insurance pays when the driver is at fault, (although not due to negligence) and the wreck was not intentional.

As an Arkansas lawyer, I must say that I disagree. I agree that negligence does not require intent, but it does require fault, generally based upon foreseeability of the consequences. That is, we hold people responsible for failing to act, or acting improperly, when the outcome is likely to injure another.

Negligence, in general, is defined as a failure to use “ordinary care”, and ordinary care is defined, by one source, as:

“The phrase “ordinary care” means that degree of care that an ordinarily careful person would use under the same or similar circumstances. The degree of care used by an ordinarily careful person depends upon the circumstances which are known or should be known and varies in proportion to the harm that person reasonably should foresee. In deciding whether a person was negligent or failed to use ordinary care you must consider what that person knew or should have known and the harm that should reasonably have been foreseen.”

Thus, while intent may be irrelevant, foreseeability is critical, and failing to drive carefully as a result of an unforeseen event would not be considered negligent.

IAOALS, also, but here’s my two cents. There are two different issues here.

1. Who is liable for the accident?

2. If the other driver (with the stroke) is liable, then does the insurance company have to pay?

It’s possible for the other driver to be liable, but not be covered by his insurance. If a court determined that he was responsible, but that the cause of the accident (the stroke) was exempted in the force majeur clause of his insurance contract, then the other driver, himself, would be responsible for any damages at trial, not his insurance company.

In short, the original writer would probably be well served by contacting a lawyer of his own.

And this is why Shakespeare loves lawyers. The legal definition of NEGLIGENCE – The failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community.

Given a man driving who is acutely seized by an unknown medical condition there is NO NEGLIGENCE. A lawerly attempt to magically call this negligence is the basis of the definition “schister” and “sleazy”.

Again, I must ask, how does “negligence” play a role in a “no fault” state?

In other words, no one has the “intention” of having an accident, they are by definition, “accidents.” Therefore, if one can deem this as an “act of god” then virtually any “accident” whether caused by running a red light or spilling coffee on your lap, or having a stroke is an “act of god.” The only way an insurance company could be found liable then is if the insured had the “intention” of having an accident…this is a bunk excuse to avoid paying out.

Ignore the “act of god” thing, it’s a red herring. This is all, as the other law students above stated, about negligence. If you didn’t fail to act as a reasonably prudent person would have acted, then you’re not negligent and if you aren’t negligent, then you aren’t liable for damages.

This, I acknowledge, is kind of stupid.

I have no idea how this plays in no-fault states. Presumably it doesn’t apply, although I don’t know.

It probably doesn’t apply to the police report side of things in no-fault states, but I got sued for negligence (and won, suckers!) in a no-fault state so that someone who collided with me in an accident could collect damages for a neck injury (turns out it was a preexisting condition for her, and that my actions were not negligent when our cars collided). The no-fault thing just refers to police reports, IIRC, not civil stuff. You have to sue to get anything from the other party’s insurance, and prove that the other driver was somehow negligent and owes you for the damage.

Unless this guy knew he was particularly susceptible to strokes, and drove anyway, he’s unlikely to be held liable. In other words, I disagree with Martin (and am also a CA lawyer).

As for the insurance company, their first obligation is to defend their insured against any claim that is even possibly covered by the policy. Thus, as bluegus32 said, a good plaintiff’s lawyer can probably get something out of Progressive – though the sheer number of people/damages involved may incentivize them to “take a stand” on this claim.

Again, this is where you need to have sufficient auto coverage on your own car, as well as medical benefits.

“I’m not sure that negligence is a requirement for the insurance company to pay out.”

It isn’t. Negligence is a tort law issue. What your car insurance covers is a contract law issue. Tort law for sure comes into play, for sure, but whether or not the insurance covers a dude with an unknown tumor losing control and smashing into you is an issue of your contract.

Martin above is correct. The other lawyer is a little scary if he’s litigating car accidents like that!

As a side note, buying car insurance that only covers accidents where somebody’s negligent (or worse) would be the WORST DEAL IN THE HISTORY OF THE UNIVERSE, because an awful lot of car accidents occur at utter random. Or because of situations like the one that started this discussion. I knew a trucker who had a heart attack and died while on the freeway. His last act was actually pulling the truck off the road so he didn’t hit anyone, but that’s a rare occurrence. Having a heart attack or seizure – or sneezing! – while driving and running into something or someone occurs more often than you’d think, and if your car insurance only covers accidents when someone is clearly NEGLIGENT, you’ve got crappy car insurance or you’re being screwed by fine print.

This is also why it’s important to have uninsured and underinsured driver coverage!

The Act of God stuff is just Progressive being jerks and trying not to pay out. And by “being jerks,” I mean “doing what’s pretty standard in the industry.” Since insurance companies make money by NOT paying out on accidents, they’re going to do everything in their power not to. Your insurance company is going to do everything in ITS power to make the other company pay out instead of your company. Most of the time your company will hire a lawyer for you and litigate it for you.

This is really the important part of the policy to understand – what is the procedure when you have an accident, when you’re at fault, when you’re not at fault, when both drivers are insured by the same company, by different companies, and what happens if the case has to be litigated. Most people seem to look at cost and coverage limits and stop there.

The other thing about car insurance, which has literally nothing to do with the law, is whether or not you have a good agent. A good agent with whom you have a personal relationship is often the biggest difference in how your claim (and car!) get handled after an accident. When I’ve had trouble with the 800 number you call right after the accident for my company, I’ve just called directly to my agent’s office and they take care of the whole thing and make the faceless claims office be nice to me. They can also expedite the claims process and get you into decent mechanics — and get you a reasonable repair cost estimate instead of a terrifyingly low-bidder and scary used parts estimate.

(Also, if you carry multiple policies with one company – like homeowner’s or renter’s, maybe life or umbrella, maybe jewelry, whatever – you’re a lot more likely to get a better handout for car repairs, because they want to keep you paying on ALL those policies and not have you jump ship because they stiffed you $200 on a car repair estimate!)

Yes, I claim to be an attorney. That’s because I am one. California State Bar # 210937. Look it up, Counsel.

This gentleman makes a common mistake (dare I say it is intentional?) wherein he equates the existence of the accident as presupposing liability. He is wrong. Very wrong. Also probably very rich. Because plaintiffs’ injury lawyers have a tendency to not give a lick about the law and instead are just sue-happy, money grubbing jerk-offs.

The above learned posts are spot on — having a stroke does not equate to breach of a legal duty. The very thought is laughable.

“A person must use reasonable care in driving a vehicle. Drivers
must keep a lookout for pedestrians, obstacles, and other
vehicles. They must also control the speed and movement of their
vehicles. The failure to use reasonable care in driving a vehicle is
negligence.”

This means that “[the driver] was required to act as a reasonably prudent person under the same or similar circumstances . . . ” (Watkins v. Ohman (1967) 251 Cal.App.2d 501, 502-503.)

“The operator of a vehicle must keep a proper lookout for other
vehicles or persons on the highway and must keep his car under such
control as will enable him to avoid a collision; failure to keep such a
lookout constitutes negligence.” (Downing v. Barrett Mobile Home
Transport, Inc. (1974) 38 Cal.App.3d 519, 524.)

How on Earth does having an unforeseen stroke equate to failing to use reasonable care? That’s just retarded. If the stroke was truly unforeseen, and the driver was not otherwise operating the vehicle in a negligent manner, then there is no negligence.

As for the all the talk about no-fault states, I can’t speak to that. California is a fault state. The person found to be negligent is deemed liable.

In the end, though, you folks now see the kinds of silly arguments that we lawyers have. This is one of the reasons I got out of personal injury law — because plaintiffs’ lawyers often do not care about pesky little things like “negligence”, “causation” or “the law.” It’s this kind of thing that drives me absolutely batty.